PAYMENTS PRODUCT USER (MERCHANT) AGREEMENT · Collexia Payments Product User (Merchant) Agreement...

Collexia Payments Product User (Merchant) Agreement Version 4.00

of 39

PAYMENTS PRODUCT USER (MERCHANT)

AGREEMENT

Entered into by and between:

Collexia (Pty) Ltd

a company duly incorporated under the laws of the Republic of Namibia, having its

main place of business at Windhoek, Namibia,

with registration number 2016/0422;

(“Collexia”)

And

The User

Collexia Payments Product User (Merchant) Agreement Version 4.00 of 39

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1. PARTIES

1.1. Collexia (Pty) Ltd,

Registration number: 2016/0422

Hereinafter referred to as “Collexia”.

1.2. The party whose details appear on the addenda hereto, hereinafter referred

to as “the User”.

2. DEFINITIONS

2.1 In this Agreement, unless inconsistent with or otherwise indicated by the

context, the following words and expressions shall bear the meanings

assigned to them hereunder and cognate expressions shall bear

corresponding meanings:

2.1.1 “API” Shall mean “Application Programming Interface”

and refers to a set of routines, protocols, and tools

for building software applications. The API specifies

how the software components, between the

Collexia Payments Product and the User’s

administration software should interact (whether it

be the User’s own administration software or third

party administration software).

2.1.2 “Intellectual

Property Rights”

Shall mean all present and future rights in the

Collexia Payments Product (including the hardware,

and software, and other components of the

information technology system), whichever is

applicable in the circumstances, and other rights

which may in future be based thereon, including but

not limited to copyright.

2.1.3 “Licence” Shall mean the right to utilize the Collexia Payments


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Products, subject to the terms and conditions of the

licence as provided for herein.

2.1.4 "Clearing Rules" Shall mean the clearing rules and procedures

contained in and referred to in the Collexia Product

Manual applicable to the specific payment stream

selected by the User and such further or other

clearing rules and procedures as may, after initial

publication, be determined by either PAN, Collexia,

the Acquiring Bank or the PSF as provided for herein;

2.1.5 "NISS” Shall mean the Namibia Inter-bank Settlement

System (NISS) is a Real Time Gross Settlement System

(RTGS), which processes and settles transaction in

real time, transaction by transactions basis (gross

basis). It settles high value and time-sensitive

payment transactions under the principles of finality

and irrevocability.

2.1.6 A “Account holder” Shall mean the person whose account is to be

debited pursuant to the issue of a mandate by such

account holder generally referred to as a member

of the public or consumer;

2.1.7 “Acquiring Bank” Shall mean Bank Windhoek Limited for the time

being, or as otherwise appointed by Collexia in its

sole discretion;

2.1.8 “Associated Parties” Shall mean:

a) all shareholders, directors, members, partners,

trustees, employees, agents, sub-contractors,

strategic alliance partners and/or representatives

of a party; and

b) all entities in which the party holds an interest; and

any entity holding an interest in the party;

2.1.9 “Bank of Namibia

Act”

Shall mean the Bank of Namibia Act, 1997 (Act No.

15 of 1997);

2.1.10 “BoN” Shall mean the Bank of Namibia xxxxxxxx

2.1.11 “Clear” or Shall mean the exchange of payment instructions


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“Clearing” between system participants with a view to

reconciling and confirming payment instructions;

2.1.12 “Collexia Payments

Product”

Shall mean the Collexia soluction including the

service offering or payments solution, which includes

hardware, software, and other components of the

information technology system, supplied by Collexia

to the User;

2.1.13 “Collexia” Shall mean Collexia (Pty) Ltd with registration

Number 2016/0422.

2.1.14 “Confidential

information”

Shall mean:

All technical, trade, commercial, financial and

management information and secrets of the

Disclosing Party’s business, including but not limited

to:

a) the know-how;

b) any information in respect of formulae,

statistics, processes, systems, business methods

and techniques used by The Disclosing Party in

the conduct of the business;

c) any information contained in any proposal

(whether accepted or pursued or not),

business or other model, computer network

and/or software architecture design,

functional specification (including the release

and detailed versions thereof), quotation or

tender (whether accepted or not), test case

document, pricing schedule or other

document prepared by the Disclosing Party,

whether furnished to the Receiving Party or

not;

d) all source code, computer software, software

concepts, specifications and internal control

systems pertaining to the Business;

e) all trade secrets, inventions, technical data,


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user or consumer data, research and

development data, profiles, designs,

formulations and all other information

belonging to or in the possession of the

Disclosing Party and used by it in the Business;

f) knowledge of details and particulars in regards

to the suppliers, customers and business

associates of the Business;

g) the Disclosing Party’s methods of conducting

the Business and related matters;

h) any other information which relates to the

Business which is not readily available in the

normal course of business to competitors of the

Disclosing Party;

i) all other information, documentation, material or

ideas of the Disclosing Party relating to the

Business, in whatever form and contained on

whatever media, whether subject to or protected

by common law or statutory laws relating to

copyright, patent, trade mark (registered or

unregistered) or otherwise;

2.1.15 “Disclosing Party” Shall mean the party who is disclosing the

Confidential Information;

2.1.16 “Entity” Shall mean any association, business, the Disclosing

Party, company, concern, enterprise, firm,

partnership, person, trust, undertaking, voluntary

association, or other juristic entity;

2.1.17 “Know-how” Shall mean all technical and other knowledge and

information, techniques, programs, technical and

design data, procedures and expertise of the

Disclosing Party in relation to the Business, which

know-how is confidential and is now owned by the

Receiving Party or which is subsequently developed

or acquired by the Receiving Party and including


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any modifications, enhancements, or other

improvements thereto.

2.1.18 “Mandate” Shall mean information delivered in paper format,

voice recorded format or otherwise furnished by the

account holder such as through the swiping of a

card and entering of a PIN, which information is

capable of being used as authority to validate the

debit against the bank account of the account

holder;

2.1.19 “Master User” Shall mean an employee of the User, identified by

the User who is given the responsibility of setting up

employees as users in the Collexia Payments

Product, assigning user rights, functionalities and

responsibilities for employees of the User, maintaining

the users which includes the ability to revoke

assigned user rights of employees;

2.1.20 “Namclear” Shall mean the cooperative venture between the

commercial Namibian-based banks, being a

clearing house who provides for the local clearing of

interbank transactions and which, together with the

Namclear PCH (Payments Clearing House) systems,

are regarded as a critical business function which is

operated by Namclear as an authorised Payment

System Operator (PSO), as a Settlement and

Clearing Agent of the Namibian banks;

2.1.21 “NPS” Shal mean the National Payments System of

Namibia as a whole, and includes any payment

system, settlement system, clearing system and

payment system arrangement used in the process of

effecting payment between payers and

beneficiaries;

2.1.22 “PAN” Shall mean the Payment Association of Namibia

being the Payment System Management Body in

Namibia, established by the Central Bank;


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2.1.23 “Party” and “Parties” Shall mean the parties to this agreement as set out in

the cover page;

2.1.24 “PISP” Shall mean a Payment Intermediation Service

Provider, a service provider who accepts money of

payment instructions as a regular feature of their

business, from any other person for the purpose of

making payments on behalf of that person to a third

person to whom that payment is due.

2.1.25 “Product Manual” Shall mean Collexia supplied user manual either in

hard copy or published in the Collexia Payments

Product; which describes the functions supported in

the product including the applicable business and

Clearing Rules per product selected and where the

Product Manual supplied or published forms an

integral part of this Agreement and where the

Product Manual amplifies all such arrangements

between the parties in accordance with the terms

hereof. The Product Manual is copyright protected

and forms part of the confidential information as

described herein;

2.1.26 “Product Schedule" Shall mean the schedule specifically describing

quantities required, terms, conditions, payment of

deposits, fees, rental of equipment, installation

certificates confirming quantities received and

installed, depending on the product selection.

2.1.27 “PSF” Shall mean the Payment Stakeholder Forum a non-

bank forum established by PAN to consult and act

on payment system related issues;

2.1.28 “Receiving Party” Shall mean the party who is in receipt of Confidential

Information.

2.1.29 “Settlement” Shall mean, for the purpose of this agreement, the

automated electronic transfer of successfully

collected debits on behalf of Users by Mercantile

Bank Limited;


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2.1.30 “the Business Rules” Shall mean the business rules and procedures

contained in and referred to in the Collexia Product

Manual applicable to the specific payment stream

selected by the User. Additional rules and

procedures may, after initial publication, to be

determined by either PAN, Collexia, the Acquiring

Bank, PSF as provided for herein;

2.1.31 “this Agreement” Shall mean the contractual relationship entered into

between the parties based on the terms and

conditions contained herein, the initial application

form or questionnaire completed and submitted,

schedules hereto and including the Product Manuals

setting out the applicable business and Clearing

Rules;

2.1.32 “User” Shall mean the Entity whose particulars are recorded

in the addenda hereto.

3. INTERPRETATION

3.1 Unless the context indicates a contrary intention, any reference to:

3.1.1 any gender shall include a reference to the other genders, and

3.1.2 the singular shall include the plural and vice versa, and

3.1.3 a natural person shall include a reference to an Entity, whether

incorporated or unincorporated and vice versa.

3.2 Paragraph headings are inserted for reference purposes only, and shall not

modify or vary the interpretation of this Agreement, or any paragraph or

provision thereof, nor shall same be used in interpreting or construing the

tenor or import of this Agreement, or any provision thereof.

3.3 Words and phrases defined in any legislation relevant to the Business and the

transactions herein set out, shall bear the meanings ascribed thereto when

referred to in this Agreement.


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3.4 Where the consent of any Party is required for any purpose, same shall, unless

the context indicates otherwise:

3.4.1 refer to the prior written consent of such Party ("the grantor"); and

3.4.2 the consent shall not be unreasonably withheld; and

3.4.3 in the event of the refusal or withholding of such consent, the onus shall

be on the Party seeking same ("the grantee") to prove that the refusal

or withholding of the consent was unreasonable in all the

circumstances; and

3.4.4 the grantee shall not be entitled to disregard such withholding of

consent until it has satisfied such onus of proof of unreasonableness;

and

3.4.5 reference to "consent" shall be deemed to include a reference to any

consent, approval or permission which may be required of the grantor.

3.5 Where in any definition rights and/or obligations are conferred and/or

imposed on any party, same shall be regarded and effect given thereto as a

substantive provision of this Agreement.

3.6 For the sake of convenience a reference to any "provision" or "provisions" shall

be a reference to any provision, term, condition, obligation, right, covenant

and undertaking in this Agreement.

3.7 The annexures, addenda and documents attached hereto (“the addenda”)

form an integral part of this Agreement as if specifically incorporated herein.

In the event of any conflict between the main part of this Agreement and the

addenda, preference shall be given to the main part of this Agreement and

the provisions shall be construed and interpreted in such a way as to give

effect to the main part of this Agreement.

3.8 Where any reference is made to a number of days for any purpose, the

calculation shall exclude the first day, and shall include the last day; and


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3.8.1 any reference to a number of days shall be a reference to a

continuous period, and shall not be deemed to be a reference to

Business Days unless the context indicates otherwise; and

3.8.2 any reference to months shall be a reference to calendar months as

a continuous period.

3.9 Where there is a conflict between any amounts referred to in numerals and

words, the amount referred to in words shall prevail.

3.10 The contra preferentum rule whereby this Agreement shall be construed

against the Party, at whose instance same has been drawn, or against the

Party in whose favour a provision is drafted, is expressly excluded.

3.11 Where any word, phrase or expression is followed by the words “and”, and

“and/or” or “or”, or “including”, the use of such words shall not be deemed to

restrict the meaning of the relevant preceding word, phrase or expression.

3.12 The eiusdem generis rule shall not apply, and accordingly where any provision

of this Agreement is followed by a specific example or reference is made to

any specific matter, such reference shall not affect the generality of the

foregoing provision.

4. PREAMBLE

4.1. Whereas Collexia is authorised by PAN as a PISP, who provides payments

solutions by way of information technology systems, which processes and

Clears electronic payments within the NPS; and

4.2. Whereas the User is desirous to make use of the Collexia Payments Product;

Now therefore the Parties agree as follows:


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5. RECORDALS

5.1. The purpose of this Agreement is for Collexia to grant a licence to the User to

access and use the Collexia Payments Product (the “Purpose”).

6. INTENTION TO CONCLUDE FURTHER AGREEMENTS (RESOLUTIVE CONDITION)

6.1. Ancillary to this Agreement, the Parties record that the following agreements

are to be effected, in as much as the execution of such agreements are

required to effectuate this Agreement:

6.1.1. An agreement between the Acquiring Bank and the User in respect of

the specific payment stream; and/or

6.1.2. Agreements with Contractors nominated by Collexia for the purposes

of effecting the provisions of this Agreement, whose products and/or

services are required for the operation of the Collexia Payments

Product.

6.2. The above list is not exhaustive of the agreements which may be required,

and Collexia will inform the User, in writing, prior to the conclusion of this

Agreement, which ancillary agreements will be required to effectuate this

Agreement, such agreements will be deemed as part of the above list, as if

specifically incorporated to this Agreement.

6.3. The Parties record that this clause 5 is a resolutive condition to this Agreement.

In the event that any one or more of the above agreements are required but

not executed, for whatsoever reason and howsoever caused, this Agreement

will be terminated ipso facto as if it never came into force and effect, subject

thereto that Collexia provides the User with 7 (seven) days’ written notice

thereof.


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7. OBLIGATIONS TO PROVIDE AND RECIEVE THE SERVICES

7.1. The User will indicate on the Product Schedule annexed hereto, the specific

products and services which it requires.

7.1.1. The User may from time-to-time update or add additional services by

completing further Product Schedules, which will be deemed part and

parcel to this Agreement, as if specifically incorporated hereto. Such

amendments to the required products and services must be in writing

and signed by both Parties, and the amendments will only take effect

on the dates specified by Collexia.

7.1.2. The User may not cancel any products or services by way of amending

the Product Schedule, unless Collexia agrees thereto in writing. In the

event that the User is desirous to cancel such products and services, it

will be deemed a cancellation of this Agreement, which must be

effected in terms of the provisions hereof, failing which it will be

deemed a breach of this Agreement.

7.2. Provided that debit instruction data captured or uploaded in debit request

files is received by Collexia in compliance with the provisions of this

Agreement, the technical interface specifications supplied, Business Rules,

and Clearing Rules, Collexia will:

7.2.1. accept and forward these debit instructions to Namclear;

7.2.2. depending on the product selection ensure that the selected action

strike date is met;

7.2.3. interrogate the file upload confirmation supplied by Namclear

ensuring that all individual debits submitted to Namclear are

acknowledged by Namclear for onward processing once due;

7.2.4. accept and process response files from Namclear;

7.2.5. disseminate data belonging to the User and either publish such data

or supply such data in the agreed file formats;

a) For greater clarity with regards to the a foregoing, the parties

record that Collexia will provide the data, containing details of


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payments received, to the User, in the agreed file formats, to

enable the User to correctly allocate the payments;

b) Collexia will retain the data records relating to the individual

payments (as opposed to only aggregated data) for a period

of 5 (five) years from the date that the record was created;

7.2.6. in instances where technical processing problems occur on issuing

bank back office platforms, Collexia will act in the best interest of the

User.

7.3. The User accepts full responsibility for and will ensure that the following

obligations are met:

7.3.1. the User will ensure that it is in possession of a valid mandate prior to

submitting any debit order instructions to Collexia;

7.3.2. the User will adhere to the terms of this Agreement, the business rules,

Clearing Rules and standards as prescribed and updated from time

to time;

7.3.3. the User will ensure the operational efficiency and integrity of its own

systems and personnel interfacing with Collexia and the Collexia

Payments Product;

7.3.4. the User will make payment to Collexia on the terms and conditions

as provided for herein.

7.4. In the event that the conduct of the User impose a risk to the payment

stream, or PAN is of the view that such behaviour may cause a risk to the

payment stream, the Acquiring Bank, Collexia or the PSF; then Collexia will be

entitled to take appropriate steps against the User which may include but is

not limited to the suspension of access to the particular payment stream or

the cancellation of this Agreement.

7.5. Should penalties be imposed on Collexia due to the conduct of the User; then

in these instances the User will pay these penalties that have been imposed

on Collexia when notified to do so; failing which Collexia will be entitled to


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cancel this Agreement with immediate effect and suspend all access to the

payment streams.

7.6. The Acquiring Bank as nominated and appointed by Collexia, will

automatically ex contractu become the Acquiring Bank of the User for the

participation of the User in that particular payment stream.

8. GRANT AND NATURE OF LICENCE

8.1. In this clause Collexia shall be deemed the “Licensor” and the User the

“Licensee”.

8.2. The Licensor herewith grants a non-transferable, non-exclusive licence to the

Licensee on the terms and conditions set out in this Agreement.

8.3. The Licence granted to the Licensee authorises the Licensee to use the

Collexia Payments Product and until this Agreement is terminated.

8.4. The Licensee shall not have the right to sub-license or transfer the Licence in

any way, either whole or in part, to any third party.

8.5. The Licensee shall not copy nor permit any party to copy any part of the

Collexia Payments Product, except to make sufficient copies solely for

backup or archival purposes.

8.6. The Licensee shall not modify, de-compile, disassemble or otherwise reverse

engineer the Collexia Payments Product, or attempt to do any of these,

provided that this stipulation shall not be applicable where de-compilation is

permitted by law.

8.7. The Licensee shall allow the Licensor, upon reasonable notice, access to its

premises to audit the Licensee's compliance with this Agreement.


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8.8. The Licensee shall not be permitted to extend this Licence to other users or in

any way cause or permit unauthorised access and use of the Collexia

Payments Product, which condition shall be deemed a material term of this

Agreement.

8.9. The Licensor shall provide the Licensee with a username and password, which

will grant the Licensee access to the Collexia Payments Product, upon

execution of this Agreement.

9. NATURE OF RELATIONSHIP & PROCESS

9.1. Collexia undertakes to provide the User access to the Collexia Payments

Product, subject to the terms and conditions contained in this Agreement.

9.2. This Agreement does not constitute either of the Parties an agent or legal

representative of the other for any purposes whatsoever and neither of the

Parties shall be entitled to act on behalf of, or to represent the other unless

duly authorised thereto in writing.

9.3. This Agreement shall not constitute a partnership or quasi-partnership

between the parties.

9.4. The Parties shall act in the upmost good faith towards each other to

implement and adhere to the terms and conditions contained in this

Agreement.

9.5. The User shall not enter into any other agreement with any other third party

which may constitute Competing Services to Collexia as it relates to this

Agreement.

9.6. The User shall make a suitable API available to Collexia in order for Collexia to

provide the User with access to the Collexia Payments Product, at no charge

to Collexia.


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9.7. The User shall provide Collexia with all relevant information, documents, and

data relating to the API to allow for the electronic communication between

the Collexia Payments Product and the User’s administration software.

9.8. The Parties shall devote the necessary time and energy both during and after

normal business hours as is reasonably required to implement the API.

10. MAINTENANCE AND OPERATING THE PRODUCTS

10.1. Each party shall be responsible for the upkeep, maintenance, necessary

developments and ancillary functions of its own information technology

system, in order to ensure the effective communication between the two

systems.

10.2. Collexia shall maintain the software supplied as part of the Collexia Payments

Product for its account. Periodic upgrades will occur which may or may not

support new functionalities.

10.3. The User may not refuse any scheduled upgrade or change in layouts,

functions or similar enhancements.

10.4. The User may not create debit order instructions under the User’s allocated

deduction code and user abbreviated name on behalf of a third party or act

as a bureaux or payment processor aggregator unless specifically authorised

in writing by Collexia to do so.

10.4.1. not to circumvent the workings of any products or equipment

supplied;

10.4.2. to notify Collexia at least 30 (thirty) day in advance once a change of

ownership in the business or debtors book occurs. The new owner of

the business or debtors book is required to complete and submit the

required questionnaire and application for services to Collexia should

the new owners wish to continue with the Collexia service offerings on

similar terms and conditions described in here failing which this


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Agreement will automatically be terminated and all future dated

debits loaded and registered will automatically be cancelled by

Collexia. No guarantees are delivered by Collexia that a new

agreement will be concluded especially once the new owner intends

to act and continue in a dual acquiring relationship;

10.5. The User will use the mandates supplied through the Collexia Payments

Product. The User may use another mandate, conditional upon the written

approval of such mandate by Collexia, the granting of which will be in the

sole discretion of Collexia.

10.6. The User will at his own cost print such mandates in duplicate, obtain the

signature of the account holder, retain the original mandate for a minimum

period of 5 (five) years and supply a copy of the mandate to the account

holder.

10.6.1. Ensure that the account holder is educated in respect of its rights and

obligations in terms of the selected payment methods, and the costs

associated therewith;

10.7. The Collexia Payments Product uses instant messaging and other

communication methods to distribute Collexia communications, messages,

User specific messages or communications, data files and documentation.

10.8. The User will grant Collexia and its employees access in order to enter the

User’s business premises as and when requested to do so and will co-operate

with Collexia and its employees in order to conduct audits with regards to any

aspects relating to whether the required mandates or any aspects in a

Product Manual have been complied with, produced, signed and retained

by the User. Should the User deny access or refuse to co-operate, then

Collexia is entitled to:

10.8.1. cancel this Agreement with immediate effect;

10.8.2. notify the PSF and PAN;


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10.8.3. suspend the presentment of all future dated payment instructions on

all Collexia Payments Products, cancelling any further processing;

10.8.4. suspend the transfer of collected funds;

10.8.5. suspend access to all Collexia’s products;

10.8.6. suspend access to any payment stream or specific service offering.

11. USERNAMES AND PASSWORDS

11.1. The User will nominate and identify the Master User in writing to Collexia.

11.2. The User (including the Master User) may not part with any username and

password that have been assigned to the Master User to any employee of

Collexia or any other third party.

11.3. The User will immediately notify Collexia in writing:

11.3.1. Should the integrity of the username and password of the Master User

be compromised;

11.3.2. Once the employee assigned with the Master User rights resigns;

11.3.3. Once the operational duties of the Master User change requiring a

new Master User to be created, identified and new username and

password to be issued.

11.4. Any failure on the side of the User will indemnify Collexia against any claim,

loss or damage sustained by the User.

11.5. The User acknowledges that usernames and passwords issued by Collexia

allows and grants access to defined actions, tasks and responsibilities to such

a user of the product as created and defined by the Master User.

11.6. The Collexia Payments Product supports the ability to change assigned

passwords however it remains the responsibility of the User to ensure that the

new password is of such nature that it conforms to good security practices.


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12. DATA INPUT AND SUPPORT CENTRE ASSISTANCE

12.1. The data input windows and the cut-off for changes are defined per product

selection in the Product Manual.

12.2. Technical support and assistance is available and rendered free of charge by

dialling _________________________________ on normal business days from

05H30 – 18H00; Saturdays and certain Public Holidays 07H00 – 12H00.

12.3. No Help Desk support is provided on Sundays.

12.4. Collexia will not deliver any first or second line support on personal computers

belonging to the User nor is any support provided on data communication

connectivity problems experienced between the User and the User’s

appointed providers.

12.5. Should data communication connectivity problems be experienced between

the User and the User’s appointed internet service provider, Collexia will assist

on a best effort basis in obtaining input data and by supplying response data

during the defined Support Centre operating hours.

13. FEES AND CHARGES

13.1. All transaction fees, rental fees and other charges reflected on Product

Schedule order forms are exclusive of VAT. The User accepts liability for

payment of the fees and charges as indicated on the Product Schedule.

13.2. Collexia supplies a monthly VAT invoice quoting the User’s VAT registration

number if the User is registered for VAT.

13.3. The anniversary date for review of fees payable is August of each year

13.4. Fees and charges reflected in the Product Schedule order form reflect the

position of agreed fee structures in the NPS as on date of signature.


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13.5. Should the underlying NPS cost structures reflected be unexpectedly

changed, then Collexia reserves the right to adjust fees and charges.

13.6. Transaction fees payable by the User are collected in real time by debiting

available funds of the User.

13.7. Depending on the product selection, monthly fees and rental fees payable

for equipment are payable to Collexia either through debit order or by

debiting the User’s automated electronic bank account opened in the name

of the User. The choice of payment method described herein is at Collexia’s

discretion.

13.8. Depending on the product selection and for products selected where no

monthly licence fees or infra-structure access fees become payable and if

the User processes the defined amount of successful debits during a month,

then a “month” for purposes of this clause is a month starting on the 26th

calendar day of a month and ending on the evening of the 25th of the

following month.

13.9. If the User negates on any of the payment obligations to Collexia as

described in this clause 10, Collexia reserves the right to withhold any future

presentments and the transfer of funds collected will be suspended until such

time that the User has paid the fees due.

14. COLLECTED FUNDS AND SECURITY DEPOSIT

14.1. The available balance of the User’s account held with the Acquiring Bank will

be transferred to the bank account nominated by the User through the co-

operation agreement between Collexia and the Acquiring Bank, on intervals

and in terms of the calculations as provided for in any ancillary agreements.

14.2. A minimum balance may be reserved as a security deposit to cover fees,

charges, reversals and disputed items, and is refunded to the User, interest

free, 40 (forty) days after the last transaction was processed. Collexia may call


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on an adjustment of the security deposit at any time, based on the risk of

potential disputes and reversals on the account, in its sole discretion. Such

upwards adjustment may be made by Collexia and the Acquiring Bank by

withholding payment to the User of funds in the bank account to the value of

the adjustment, and a downwards adjustment may be made by paying the

excess funds to the User.

14.3. Once notice of cancellation has been given by either Party, and should the

User participate in a payment stream where a successfully collected debit is

able to be disputed, then Collexia is entitled to increase the minimum

balance to an amount equal to the previous 6 (six) month average dispute

value.

14.4. Once this Agreement has been terminated or the User no longer participates

in a payment stream where successfully collected debits are able to be

disputed, the User is still liable for any future disputed debits that may be

received, including all costs and charges to recover the funds from the User.

15. LIABILITY WARRANTY AND INDEMNITY

15.1. The User herewith indemnifies Collexia against any loss, cost, action, fees,

damages, liabilities, suits or demands of whatever nature that may be

brought against Collexia through the breach of any term or condition of this

Agreement by the User.

15.2. The User warrants that every account holder, on whose account a debit is

processed through any Collexia product supplied, has authorised such

transaction.

15.3. The User warrants that he will comply with the terms and conditions of this

Agreement, the business rules and Clearing Rules applicable for the payment

stream in which he participates.


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15.4. The User indemnifies Collexia and as stipulatio alteri (stipulation for the benefit

of the third party) likewise indemnifies the account holder’s bank and

undertakes to hold each of them harmless against any loss, damage, legal

liability, legal costs on an attorney and client scale or expenses of whatever

nature that they may suffer or become liable for arising from non-compliance

by the User with the conditions described in this Agreement, computer error,

data content error, or unauthorised use of the service by the User or any

person authorised or deemed to be authorised to act on behalf of the User,

resulting in incorrect, unauthorised and/or wrongful payment instructions.

15.5. The User undertakes and agrees to refund Collexia or the account holder’s

bank, as the case may be, any and all amounts (including any dispute fees

raised) paid to the User in respect of debits processed if the account holder

at any subsequent time disputes the validity or existence of the mandate or

underlying agreement, and hereby irrevocably authorises Collexia to debit

the account opened in the name of the User with Collexia’s Acquiring Bank,

or in instances where no funds are available in such an Account, the User’s

account specified on the schedule with such amounts.

15.6. The warranties and indemnities given in this clause 12 shall remain operative

and enforceable notwithstanding the cancellation or termination of this

Agreement in respect of any such loss, costs, fees, damage, suits or demands

aforesaid, the cause arose during the substance of this Agreement.

15.7. Neither party shall, in any circumstances, be liable to the other party for any

indirect or consequential loss or damages including, without limitation, loss of

business or profits.

15.8. Neither party will be liable to the other party for any delay or non-

performance of its obligations under this agreement arising from any cause

beyond its reasonable control including, without limitation, any act of God, a

governmental act, an act of any regulatory authority, an act of any

participating issuing bank, an act of the nominated Acquiring Bank or an act

of Namclear.


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16. DURATION AND TERMINATION

16.1. This Agreement shall commence on the Signature Date and shall endure

thereafter for a continuous period subject to the right of either Party to

terminate this Agreement, (which termination includes cancellation).

16.2. This Agreement may be cancelled by either Party by giving the other Party

reasonable written notice to such effect, of at least 1 (one) calendar month.

16.3. In addition to and notwithstanding to anything to the contrary contained

herein, either Party shall be entitled to cancel this Agreement by giving

reasonable notice in the circumstances, taking into consideration the extent

and the nature of the breach, if:

16.3.1. The other Party commits a breach of any of the material terms and

conditions of this agreement; or

16.3.2. Either Party takes a resolution for business rescue, or application is

issued to liquidate, or an application is issued for the judicial

management, or the party makes any general assignment for the

benefit of its creditors or effects or attempts to effect a compromise

or composition with its creditors, either Party be placed under judicial

management, curatorship, liquidation or under a winding-up order,

whether provisionally or finally, voluntary or compulsory.

16.4. Upon the termination of this agreement, the following provisions shall apply:

16.4.1. All amounts owing to either Party shall become immediately due and

payable within three months from the date of termination; and

16.4.2. The provisions contained in this Agreement relating to Confidentiality

and Restraint of Trade, and Intellectual Property Rights, shall survive

termination.


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17. BREACH

17.1. Subject to the terms described in this Agreement where immediate

cancellation or suspension may be evoked, either party shall be entitled to

cancel this agreement pursuant to the breach thereof by the other party,

notwithstanding that such breach does not constitute a material breach.

17.2. In the event that the breach is not capable of being remedied by specific

performance within a reasonable time after the occurrence of the breach, or

by the payment of damages, or if it is capable of being so remedied and is

not remedied within a reasonable time period after the party in breach

receives written notice to do so, then the aggrieved party may serve a notice

of cancellation effective 7 (seven) days from date of receipt of such notice,

to cancel the Agreement. Such cancellation will not restrict the aggrieved

party from enforcing any other rights that it may have in law, this Agreement,

or delict and the aggrieved party may institute any claim for damages

together with such cancellation, as it may be entitled to do in terms of law,

this Agreement or delict.

18. SUMMARY CANCELLATION

18.1. Collexia shall, without prejudice to any other rights which it may have in law,

be entitled to summarily cancel this Agreement by notice to the User, in the

event that:

18.1.1. Collexia unsuccessfully attempts to recover by way of electronic

deduction, any amounts due to it, from the bank account specified

by the User in the addenda hereto; or

18.1.2. The User’s registration with a statutory body is not completed,

competent, is revoked, or cancelled, or the User fails to renew the

registration within the defined and required time period; or


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18.1.3. A User or any of its Associated Parties has its access to the NPS or any

of its subsidiary bodies suspended, cancelled, or annual renewal is

refused; or

18.1.4. The User or any of its employees acts in a manner which is deemed

unprofessional by Collexia, which includes but is not limited to verbal

abuse of any Collexia employee, agent, or contractor, or conducts

business contrary to best practices in the relevant industry, or performs

any act or omission which causes or may cause Collexia to be in

disrepute, whether wilful or negligent.

19. CONFIDENTIALITY, NON-DISCLOSURE AND RESTRAINTS

19.1. The provisions relating to confidentiality, restraint and non-disclosure shall

apply to all disclosures made between the Parties relating to the Confidential

Information and shall be deemed of force and effect retrospectively where

necessary, from the date of the first disclosure.

19.2. The provisions of this Agreement relating to Confidentiality and non-disclosure,

will survive termination of this Agreement.

Confidentiality & non-disclosure

19.3. Having regard to the fact that the Disclosing Party may disclose some or all of

the Confidential Information to the Receiving Party, the Receiving Party

hereby irrevocably agree and undertake, in favour of the Disclosing Party,

and in order to protect the Disclosing Party’ proprietary interests in and to the

Confidential Information:

19.3.1. not, during the existence of this Agreement or at any time thereafter,

to use, divulge or disclose, directly or indirectly to any person or entity

whatsoever, in any form or manner whatsoever, either directly or

indirectly, the Confidential Information or any portion thereof that


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may have been disclosed or communicated to or acquired by a

Party;

19.3.2. not, during the existence of this Agreement or at any time thereafter,

to use, exploit, permit the use of or in any other manner whatsoever

apply the Confidential Information or any portion thereof for its own

benefit or for any other purpose whatsoever other than for the

purpose for which it was disclosed and otherwise than in accordance

with the provisions of this Agreement;

19.3.3. during the existence of this Agreement and at all times thereafter, to

maintain in secrecy all Confidential Information which may have

been disclosed or communicated to or acquired by the Receiving

Party.

19.4. Notwithstanding the provisions of clause 19.2. above, the Receiving Party shall

be entitled to disclose the Confidential Information to such of their associated

parties as may strictly be necessary for the purpose for which the Confidential

Information was disclosed, provided that the Receiving Party shall take

whatever steps are necessary to ensure that such associated Parties agree to

abide by the terms of this Agreement and, if so requested by the Disclosing

Party, each conclude a separate confidentiality and non-disclosure

agreement mutatis mutandis on the terms and conditions set out herein in

favour of the Disclosing Party, in order to prevent the unauthorized disclosure

of the Confidential Information to third parties.

19.5. The Receiving Party:

19.5.1. undertake not to adapt, alter, modify or change any of the

Confidential Information; and

19.5.2. acknowledge that:

19.5.2.1. the unauthorized disclosure of the Confidential information

or any portion thereof to a third party may cause

irreparable loss, harm and damage to the Disclosing Party

and accordingly the Receiving Party hereby indemnifies

and holds the Disclosing Party harmless against any loss,


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action, expense, claim, harm or damage, of whatever

nature, suffered or sustained by the disclosing party

pursuant to a breach by the Receiving Party or any

associated party of the provisions of this agreement; and

19.5.2.2. neither the Disclosing Party nor any of its employees,

representatives or agents makes any representation or

gives any warranty as to the accuracy or completeness of

the Confidential Information divulged to the Receiving

Party and they shall accordingly not be liable to the

Receiving Party with respect thereto; and

19.5.2.3. shall take all such steps as may be necessary to prevent

the Confidential Information falling into the hands of

unauthorized third parties; and

19.5.2.4. hereby accept responsibility for all acts and omissions of

their associated parties in relation to the Confidential

Information.

19.6. Any and all documentation or records relating to the Confidential Information

which comes into the possession of the Receiving Party during the existence

of this Agreement or at any time thereafter:

19.6.1. shall be deemed to form part of the Confidential Information;

19.6.2. shall be deemed to be the property of the Disclosing Party;

19.6.3. shall not be copied, reproduced, published or circulated by the

Receiving Party;

19.6.4. shall be surrendered to the disclosing party on demand and the

Receiving Party shall not retain any copies or précis thereof or extracts

therefrom.

19.7. Any and all information which is acquired by the Receiving Party pursuant to

the implementation of this agreement, in whatever form or from whatsoever

source specifically including, but not limited to, that information verbally

communicated to the Receiving Party, shall be deemed to be Confidential

Information and shall be subject to the provisions contained herein.


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19.8. The above undertakings relating to confidentiality and non-disclosure shall not

apply to any information which:

19.8.1. the Receiving Party can demonstrate is already in the public domain

or becomes available to the public otherwise than by the default of

the Receiving Party;

19.8.2. the Receiving Party can demonstrate to have been in its possession at

the time of its disclosure hereunder without an obligation of

confidence, as proved by the Receiving Party’s written records;

19.8.3. the Receiving Party can demonstrate was independently acquired or

developed in circumstances that do not amount to a breach of the

provisions of this agreement by the Receiving Party, as proved by the

Receiving Party’s written records;

19.8.4. the Receiving Party can demonstrate was acquired by it

independently from a third party acting in good faith which has not

previously obtained the Confidential Information directly or indirectly

under a confidentiality obligation from the Disclosing Party, as proved

by the Receiving Party’s written records; or

19.8.5. is disclosed by the Receiving Party to satisfy an order of a court of

competent jurisdiction or to comply with the provisions of any law or

regulation in force from time to time, provided that in such

circumstances the Receiving Party shall give the disclosing party

sufficient prior written notice of such request so as to enable the

disclosing party to take whatever steps it deems necessary to protect

its interests in this regard, provided further that the Receiving Party

shall only disclose that portion of the Confidential Information which it

is legally required to disclose and the Receiving Party shall use all

reasonable endeavours to protect the confidentiality of such

information to the widest extent possible in the circumstances.

19.9. In order to protect the Confidential Information, the Receiving Party hereby

undertake:


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19.9.1. to claim and enforce similar confidentiality undertakings from all their

associated parties to whom the Confidential Information or any

portion thereof is disclosed; and

19.9.2. to preclude other persons having access to the Confidential

Information and shall only allow the aforesaid category of persons to

come into contact with such Confidential Information.

Restraints

20.1. During the term of this Agreement and for a period of 1 (one) year after the

termination of this Agreement, howsoever that may be caused, the Collexia

may not be engaged or interested in any trade or business which is similar to

or competes with directly or indirectly, the trade or business of the User or its

Associated Parties, within the geographical jurisdiction of any of the locations

at which the User holds an office during the final 6 (six) month’s of this

Agreement.

20.2. During the term of this Agreement and for a period of 1 (one) year after the

termination of this Agreement, howsoever that may be caused, the Collexia

may not directly or indirectly contact or communicate with, for business

purposes, any User or prospective User of the User, or Associated Parties (in

the event that the Collexia had access to Confidential Information of the

Associated Party during the scope and execution of its duties in terms of this

Agreement) unless such contract or communication is solely for a purpose

other than providing or offering to provide services similar or identical to those

provided by the User or its Associated Party.

20.3. During the term of this Agreement and for a period of 24 (twenty four) months

after termination of this Agreement, howsoever that may be caused, the User

may not, whether for its own benefit or that of another or its Associated

Parties, solicit, interfere with the employment relationship, or entice or

endeavour to entice any employee of the Collexia, away from the Collexia.

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20.4. The Receiving Party hereby acknowledges that:

20.4.1. the Confidential Information constitutes a valuable proprietary asset

of the Disclosing Party;

20.4.2. The Disclosing Party is the sole legal and beneficial copyright or other

owner of all rights in and to the Confidential Information and the

know-how;

20.4.3. prior to the disclosure and impartation of some or all of the

Confidential Information to the Receiving Party, the Receiving Party

has no knowledge thereof;

20.4.4. the obligations imposed on the Receiving Party and the restraints

imposed upon them in terms of this Agreement are reasonable;

20.4.5. this Agreement is entered into upon the basis, and it is a material term

of this Agreement, that the relevant Party shall be entitled to the

benefit of the restraints set out in clauses 20.1 to 20.3 above.

21. INTELLECTUAL PROPERTY RIGHTS

21.1. Each Party shall be the owner of the Intellectual Property rights relating to the

source code of its own information technology system.

21.2. The Intellectual Property rights relating to the initiative, design, concept and

programming code of the Collexia Payments Product, including but not

limited to any business process description and software specification

requirements, vests in Collexia.

21.3. Both parties acknowledge that the Intellectual Property Rights as described

herein constitutes a valuable proprietary asset of the other Party.

22. JURISDICTION

22.1. This Agreement shall be interpreted and construed in accordance with the

Laws of the Republic of Namibia and as such the primary private international

law classification shall be under contract.


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22.2. The Parties however consent to both the jurisdictions of the Republic of

Namibia and the jurisdiction in which the User is registered in to adjudicate

upon any matter emanating from this Agreement.

22.3. The Parties agree that the country in which the Defendant Party is domiciled

shall have jurisdiction to hear any matter relating to this Agreement, however

it shall be competent for a Party to approach a court in either jurisdiction for

interim relief, which Court Order shall be enforceable in the other jurisdiction

pending the hearing of the main matter in the applicable jurisdiction.

22.4. In the event of a conflict of laws the interpretation shall firstly be followed that

gives effect to this Agreement under contract, and subsequently the

interpretation shall be followed that gives effect to the secondary

international law classification being that of the applicable jurisdiction.

23. DOMICILIA AND NOTICES

23.1. The Parties choose as their respective domicilia citandi et executandi for all

purposes under this Agreement, whether in respect of notices in terms of this

Agreement, court process, or other documents or communications of

whatsoever nature (including the exercise of any option) the following

addresses:

Collexia:

Physical address: 7 Seitz Strasse,

Maerua,

Windhoek,

Namibia

E-mail: [email protected]

For attention: Chief Executive Officer


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The User: As per the addenda hereto

23.2. Either of the Parties may change its domicilium citandi et executandi to

another address within the same country, by way of a notice to the other

party to this Agreement, provided that such a notice is received by the

addressee, at least 7 (seven) calendar days prior to such a change taking

effect.

23.3. Any notice addressed to either of the Parties and sent by registered post to it

at its chosen address on the 5th (fifth) calendar day after posting. In the case

of hand delivery at the Party’s chosen address to a responsible person on any

day of the week between 08h00 and 17h00, excluding Saturdays, Sundays

and Namibian public holidays, shall be deemed to have been received,

unless the contrary is proved, on the day of delivery.

23.4. Notwithstanding anything to the contrary herein contained a written notice or

communication actually received by a party shall be an adequate written

notice or communication to it notwithstanding that it was not sent to or

delivered at its chosen domicilium citandi et executandi.

23.5. Any notice sent by e-mail to either of the Parties shall be deemed, unless the

contrary is proved, to have been received:

23.5.1. if it is transmitted on any day of the week between 09h00 and 16h00,

excluding Saturdays, Sundays and Namibian public holidays, within 2

(two) hours of transmission;

23.5.2. if it is transmitted outside of these times, within 2 (two) hours of the

commencement any day of the week between 09h00 and 16h00,

excluding Saturdays, Sundays and Namibian public holidays, after it

has been transmitted.

23.6. Proof of e-mail delivery shall be sufficient proof of service in the event that a

notice is sent via e-mail.


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24. GENERAL

24.1. This Agreement shall be binding upon the Parties, their heirs, administrators,

lawful successors-in-title and permitted assigns.

24.2. This Agreement comprises the sole Agreement between the Parties relating to

the transactions referred to and supersedes and replaces any previous

agreements between the Parties, whether written or oral.

24.3. No amendment, variation, addition to, deletion of, waiver, suspension or

consensual cancellation of the whole of this Agreement or any provision

hereof (including this clause), shall be of any force or effect, unless reduced

to writing and signed by or on behalf of the Parties.

24.4. No indulgence, latitude or extension of time (for convenience, "indulgences"),

which any Party may show any other Party, shall be deemed to comprise a

waiver by the Grantor, nor constitute any novation, nor give rise to any

defence based on the principle of Estoppel (nor create any precedent) and

notwithstanding any such prior indulgences, the Parties shall, at all times, be

entitled to rely upon and demand a prompt compliance with the provisions

this Agreement (and of the obligations of the other Parties).

24.5. No Party shall be entitled to cede, assign or otherwise delegate wholly or in

part any of its obligations under this Agreement without the express prior

written consent of the other Party.

24.6. The provisions of this Agreement are severable and divisible as to each

provision or part thereof, and should any provision or part thereof be found to

be invalid or unenforceable by a competent Court, such a finding shall,

subject to the Order of such Court, not affect the validity and/or

enforceability of the remaining provisions or parts thereof.


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25. SIGNATURES

SIGNED at _____________________________ on _______________________________

AS WITNESSES

1. ____________________________________

2. ____________________________________

_____________________________

For and on behalf of

COLLEXIA

SIGNED at _____________________________ on _______________________________

AS WITNESSES

2. ____________________________________

2. ____________________________________

_____________________________

For and on behalf of

THE USER


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Annexure “A”

User details:

Entity Registered Name:

Trading as:

Entity Legal Registration nr:

NPS Abbreviated Short Name

(6 Letters):

Tel number:

Herein represented by (Who

warrants that he/she is duly

authorized to act herein):

ID nr:

Email (domicillium):

The User’s Domicillium citandi ex executandi (address for service of legal process and

notices in terms of this Agreement, as per clause 22):

Physical address:

E-mail:

For attention:

Master User - Full Names and

Surname:

ID nr:

Email (domicillium):

Telephone Number:


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Annexure “B” 1:

EnDO Product Schedule

COLLEXIA MERCHANT FEE STRUCTURE

PER BANK: Any Other Bank:

Trustco Bank FNB

Basic Transaction Fee: Per transaction submitted Fixed fee N$ 4.00 N$ 4.00 N$ 4.00

Additional Successful Transaction Fee:

Additional value-based transaction fee on Successful Transactions

% of successful value 1.4% 1.22% 1.4%

Additional Unsuccessful Transaction Fee:

Additional fee Per Unsuccessful Transaction

Fixed Fee N$ 1.00 N$ 1.00

Tracking Fee: Per Tracking Day From day One N$ 2.57 N$ 2.00 N$ 2.57

Dispute Fee: Per Successful Dispute raised against the User

150 150 150

Transaction Recall Fee: Per Re-called Transaction 10 10 10

Fee: Subscribers & Users Merchant fee Charged per Merchant/Per Month

N$ 400.00 N$ 400.00 N$ 400.00

User fee Charged per registered user/per month

N$ 100.00 N$ 100.00 N$ 100.00

I, __________________________________________________(1st Name, Initials and Surname),ID Nr______________________________, accept the above prices on behalf of the User, and herewith mandate Collexia to collect any outstanding fees and charges on the User’s accounts:

1. Subject to Collexia’s sole discretion in respect of date, method and User account, irrespective of any preferences indicated; 2. With any available electronic payment method available to Collexia, 3. From any of the bank accounts as stipulated on Annexure “C” – List of bank accounts;

________________________________ ______________________________________

DATE: SIGNATURE:


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Annexure “C”:

List of the User’s Bank Accounts:

Merchant name

(as to be displayed on reporting)

Disbursement account

(For disbursement of collected payments)

Fee account

(for merchant fee payments) GLOBAL ID

(Office use) Bank Acc Number Bank Acc Number


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USER: GENERAL COMPANY INFORMATION:

Registered Name of Company:

Type of business conducted:

Brand Name:

Trading name:

Date of establishment:

Company Registration Number:

Head Office Physical Address:

Postal Address:

Head Office Phone Number:

Head Office Fax Number:

VAT Registration Number:

TAX Registration Number:

Contact Person:

Designation:

Cell:

Email Address:

Alternative Contact Person:

Designation:

Cell:

Email Address:

Registered Address:

Authorized Signatories: Imitials & Surname: ID:

Tel. (w)

Fax No.

Cell. No:

Email address:


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DIRECTORS INFORMATION:

NAME ID NUMBER EXECUTIVE / NON-EXECUTIVE

PAYMENTS PRODUCT USER (MERCHANT) AGREEMENT · Collexia Payments Product User (Merchant) Agreement...

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